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2015 DIGILAW 336 (GUJ)

Mamad Hussain Jusab Rathod v. State of Gujarat

2015-03-26

S.G.SHAH

body2015
JUDGMENT S.G. Shah, J. 1. Heard learned advocate Mr. K.B. Anandjiwala for the appellant and learned APP Ms. Jirga Jhaveri for the respondent - State. 2. The appellant is original - accused No. 1 in Sessions Case No. 26 of 1998, wherein he was convicted for the offence punishable u/s.307 of the Indian Penal Code and sentenced to suffer R.I for five years and to pay fine of Rs. 500/- with condition that in default of payment of fine, he should undergo R.I for additional three months. Such impugned judgment is dated 20.2.2003 by the Addl.Sessions Judge of Bhuj at Kachchh whereby the accused No. 2 has been acquitted. 3. If we peruse the record, the factual details regarding the incident is emerging to the effect that on 21.5.1997, one Shambhubharti Arjanbharti Gosai, who was serving as a driver on police mobile vehicle No. P-80 in city police station at Bhuj was driving another police vehicle being mobile vehicle No. P-66. Since the vehicle was out of order for couple of days and lying at MT Section for repair. On 21.5.1997, when the brake of said vehicle No. P-66 failed, he took the said vehicle also to MT Section for repairing where the present appellant was serving as Technician and has to repair such vehicles. At that time, Head Constable - Bhimjibhai and Anwar Ladhubhai were there with Mr. Gosai and they took a trial test of the vehicle with the appellant as a technician. It is the case of the prosecution that during such trial test of vehicle No. P-66, the appellant told Mr. Gosai that he had repaired vehicle No. P-66 and vehicle No. P-80 is under repair and, therefore, he should be provided with tea and water (chai-paani). At this stage, it would be relevant to recollect that the meaning of phrase "chai-paani" in vernacular in fact denotes to demanding some gratification, which should be either in terms of money or otherwise and may also be generally termed as demand of bribe. Therefore, Shambhubharti Gosai, driver of both the vehicles told the appellant that if he demands chai-paani, he would complain about the same to the District Superintendent of Police. Therefore, Shambhubharti Gosai, driver of both the vehicles told the appellant that if he demands chai-paani, he would complain about the same to the District Superintendent of Police. Then, they all returned to the police station in vehicle No. P-66 at about 2.30 p.m. At that time, there was a change in duty and, therefore, Shambubharti Gosai had to handover the charge of the vehicle to another driver, namely, Bhikhalal. At such point of time, it is alleged that when Shambhubharti Gosai was standing with the vehicle outside the police station, the appellant had came there and told Shambhubharti that he should not complain to the D.S.P. about his demand for chai-paani and if he did so, then, he would be beaten. Thereupon, Shambhubharti has told that he would certainly complain to the D.S.P. and at such point of time, it is alleged that the appellant took out a knife from his waist portion and inflicted one blow in the abdomen of Shambhubharti. Thereupon, the FIR was lodged at some belated stage, inquiry was held, two persons were charge-sheeted and tried and amongst them, as aforesaid, appellant has been sentenced, whereas co-accused being brother of the appellant, has been acquitted, since no witness could identify him as the same rickshaw driver in whose rickshaw appellant had run away from the place of incident. Hence, the appellant has preferred this appeal against such judgment of conviction. It seems that though accused No. 2 was released on bail pending trial, the accused No. 1 was not released for some time and, ultimately, after conviction also, he was not immediately released by this High Court, but, ultimately on the ground of sickness and illness of the appellant and his wife, he was released on bail. But, even thereafter, he remained in imprisonment for almost 19 months. Thereby, at present, the appellant is on bail. 4. To ascertain the legality and validity of the impugned judgment, this being a regular criminal appeal, we need to scrutinize the evidence before the Sessions Court so as to confirm that whether evidence is sufficient to confirm the conviction as recorded herein above. 5. Thereby, at present, the appellant is on bail. 4. To ascertain the legality and validity of the impugned judgment, this being a regular criminal appeal, we need to scrutinize the evidence before the Sessions Court so as to confirm that whether evidence is sufficient to confirm the conviction as recorded herein above. 5. On perusal of record, it becomes clear that the prosecution has examined as many as 19 witnesses as listed in paragraph 5 of the impugned judgment and proved as many as 17 documents as listed in paragraph 6 of the impugned judgment to prove its case. Whereas, the accused has not adduced any other or further evidence and thereby he mainly relied upon the veracity and effect of the evidence of the prosecution itself to confirm his innocence or lack of evidence to convict him. However, accused has tried to explain his innocence in his further statement u/s.313 of the Cr.P.C. List of documents and witnesses are already very well described in the impugned judgment and when it is scrutinized herein after, I have avoided to reproduce such list. 6. PW-1 - Rameshchandra Chunilal Gor at Exh.10 is a panch witness of panchnama of scene of offence, which is produced at Exh.11. Whereas PW-2 is second witness of the same panchnama at Exh.12. Both such witnesses have turned hostile and do not support the case of the prosecution. Both of them have categorically stated that police have taken their signatures on ready panchnama and thereby panchnama was not prepared in their presence at all and they do not know the factual details of the panchnama. PW-1 has also admitted that he is having his tea stall opposite the police station. Thereby, though, he may be one of the person near the incident and, therefore, may be an eye-witness or atleast a panch witness when he did not agree that panchnama was prepared before him. It is for the prosecution to be more careful and vigilant in such cases to select better and proper person as a pancha and to see that witnesses may not turn hostile before the Court. If prosecution and investigating agency are keen about their activity, then, they should initiate appropriate proceeding against such hostile witness. It is for the prosecution to be more careful and vigilant in such cases to select better and proper person as a pancha and to see that witnesses may not turn hostile before the Court. If prosecution and investigating agency are keen about their activity, then, they should initiate appropriate proceeding against such hostile witness. However, so far as criminal liability is concerned, it would be difficult to rely upon such evidence to confirm commission of offence and guilt of accused as put forward by the investigating agency. Similar is the situation with PW-3 at Exh.15, namely, Pratpalsinh Surendrasinh. With reference to panchnama of autorickshaw No. GJ-12T-483, alleged to be used by the accused to run away from the place of incident. So also, the situation that panchname of the examination of rickshaw by expert of FSL, Junagadh, which is produced at Exh.18, by PW-4 - Bahadursinh Balubha Jadeja being panch witness of such panchnama. Thereby, none of the panchnamas are proved by the prosecution. Even PW-5 at Exh.23 has also turned hostile, who was shown as panch witness in Exh.23, being panchnama regarding appellant No. 1 is concerned. Such panchnama is at Exh.24. Similar is the situation with PW-6 at Exh.26, being panch witness of panchnama, which is produced at Exh.27 again regarding the physical condition of the appellant during his custody. The second witness of such panchnama being PW-7 at Exh.29 has also turned hostile, whereas PW-8 at Exh.30 is second witness of panchnama regarding arrest of the appellant at Exh.25 with PW-5 as second panch witness. However, he turned hostile. Thereby, as many as eight panch witnesses i.e. in fact all the panch witnesses have turned hostile and thereby though panchnamas were exhibited on record, it cannot be said that there is proper evidence on record to confirm the place of incident, presence of accused, condition of rickshaw alleged to be involved in the accident, then, what remains is only the evidence of witnesses, who were present nearby either as eyewitness or the injured victim. 7. Amongst them, PW-9, Exh.31 is one Rajendrasinh Hakumatsinh Jadeja. 7. Amongst them, PW-9, Exh.31 is one Rajendrasinh Hakumatsinh Jadeja. This witness has also turned hostile and did not support the case of the prosecution and he categorically denied in his cross-examination by the P.P. that he was passing nearby the place of incident on his motorcycle and at that time, he saw the appellant with the knife in hand of the appellant or quarrel between the appellant and Shambhubharti or that appellant has given a blow into the abdomen of Shambhubharti by knife and thereby he stopped at the place and rushed to catch the appellant, who was trying to run away in a rickshaw and thereupon he took, Shambhubharti on another police vehicle with a driver to hospital and then went to his home for his lunch or that he knows all the police staff since his shop is nearby the police station or that he had seen the incident. Therefore, one of the eye-witness has not supported the case of the prosecution. Whereas PW-10 at Exh.32 - Rahematulla Hasambhai has also turned hostile. He categorically denies the story of the prosecution that he has given his rickshaw No. GJ-12T-483 to accused No. 2 on rent. Therefore, this witness is not aware about the incident, but, the prosecution has tried to prove the involvement by accused No. 2 and rickshaw owned by this witness. When accused No. 2 is acquitted, and when witness has turned hostile, evidence of this witness does not confirm any act of accused No. 1 to confirm the conviction against him. PWs-11 and 12 at Exhs.33 and 34 are panch witnesses of the recovery panchnama, which is proved at Exh.16. However, both of them have also turned hostile and do not support the recovery of knife and clothes of the accused from the accused. Then the only witnesses supporting the case of the prosecution are at Exhs.40, 41 and 42 being PWs-13, 14 and 15. 8. PW-13 - Bhikhalal Naranbhai at Exh.40 is also a driver and on the date of incident i.e. on 21.5.1997, at about 2.30 p.m., he was at Bhuj police station since his duty starts from there and when he has to take over the charge of the vehicle from the victim Shambhubharti. 8. PW-13 - Bhikhalal Naranbhai at Exh.40 is also a driver and on the date of incident i.e. on 21.5.1997, at about 2.30 p.m., he was at Bhuj police station since his duty starts from there and when he has to take over the charge of the vehicle from the victim Shambhubharti. It is his say that at such point of time, accused No. 1 who was serving as a Mechanic in MT Department, had come near them where he and victim were standing and accused No. 1 has given a knife blow on abdomen of the victim - Shambhubharti, at that time, other constables have rushed to catch the accused No. 1, but he had run away in rickshaw and thereupon witness has taken the victim to the hospital. He further deposed that as per his knowledge, the quarrel was because of some money transaction. He identified the accused before the Court and also disclosed that the victim Shambhubharti has died. However, his death was not attributed to the injuries received by him in alleged incident. Such fact has been brought on record in his cross-examination when he admits that Shambhubharti was sick and admitted in Civil Hospital because his internal organs have failed. However, he denies the suggestion that it was because of the consumption of liquor or that victim Shambhubharti was consuming liquor and there were several cases against him for the same. Therefore, practically, the prosecution could not examine the real victim, namely, Shambhubharti as a witness, since on the date of trial, he was not available as he had died due to some sickness. 9. The witness has further admitted that his statement was not recorded on the date of incident itself, but it was recorded on the third day of incident when he categorically reconfirms that statement was not recorded on second day also. He further admits that the compound wall of the police station is more than 6 ft. of height and, thereby, person standing inside cannot see what is happening outside and outsider cannot see beyond the wall. The witness was also serving in MT Section with the accused and that section was functional from 8 a.m. to 12 p.m. and thereafter from 2 p.m. to 6 p.m. He further admits that all the vehicles, which enter into MT Sections are being registered by both the entries, incoming and outgoing. The witness was also serving in MT Section with the accused and that section was functional from 8 a.m. to 12 p.m. and thereafter from 2 p.m. to 6 p.m. He further admits that all the vehicles, which enter into MT Sections are being registered by both the entries, incoming and outgoing. He further admits that in the year 1997 also, the timings of the MT Section was same and that no vehicle can enter into the MT Section between 12 p.m. to 4 p.m. He also admits that the entry register of the MT Section is being endorsed by a signature of incharge Sub-Inspector of the section. It is further stated by the witness that when they came to take over the charge of the vehicle No. P-80, the vehicle was not there and it had not reached till they took Shambhubharti to the hospital. It is his say that he went to the police station at about 1 p.m. and thereby it is to be understood that vehicle No. P-80 had not reached the police station or MT Section between 1 p.m. to 3 p.m. He further admits that all the witnesses have been given xerox copy of their statements when they have to depose before the Court and they were instructed to read-over the statements and to depose in accordance with such statement only. He was further asked about the case filed by the present appellant against one PSI, namely, N.R. Rajput. However, he denies to know Mr. Rajput personally, though he admits that he is aware that Mr. Rajput has been convicted for 10 years u/ss.333 and 307 of the IPC filed by the present appellant. He also admits that muster of the staff working in MT Section is being maintained, which is also signed by the incharge officer and if nobody is on leave, it would certainly reflect in such register since it is to be reported to such incharge. So far as other witness Bhimjibhai Jumabhai is concerned, this witness admits that he knows him and he is a Constable in Bhuj city and that he was also facing charge under the Prohibition Act. He further admits that he was inside the gate of the police station, whereas voice of shouting was coming from outside. So far as other witness Bhimjibhai Jumabhai is concerned, this witness admits that he knows him and he is a Constable in Bhuj city and that he was also facing charge under the Prohibition Act. He further admits that he was inside the gate of the police station, whereas voice of shouting was coming from outside. However, he denies that victim Shambhubharti has reached the place on his Luna and he confirmed that he had not seen such Luna outside the police station, but when he rushed to the place, Shambhubharti was sitting with his hands on his abdomen. He denies the suggestion that victim Shambhubharti had several enemies, both inside the department and outside the department. He denies the suggestion that he has not seen the incident, whereby the appellant had given a knife blow to the victim. He has disclosed the presence of Head Constables Gopalbhai and Hirjibhai and P.S.O. Popatbhai. He also admits that hospital is about 2-1/2 kms. away and it took 10 to 15 minutes for them to reach to the hospital and that there is police chowky in the hospital also, where the police constable is on duty for 24 hours. He further admits that he has not disclosed anything to the constable at police chowky and that since PSO Popatbhai had rushed to the place, he has conveyed the incident to Popatbhai. He is also not knowing that whether medico legal case has been registered at the police chowky of the hospital or at the hospital. Rest of the information is not of much material at this stage regarding time and topology of the hospital and visit by PSI Joshi. However, he denies the suggestion that though he was not knowing anything about the incident, he is deposing before the Court on the say of Mr.Rajput, since Rajput has enmity with the appellant - accused. 10. Thereby, it is submitted by the learned advocate for the appellant Mr. K.B. Anandjiwala that this eye-witness could not see the incident when he was inside the gate and he rushed to the place only when he listened the shouting and when he admits that he reached the place Shambhubharti was already sitting, keeping his hands on his abdomen i.e. after Shambhubharti received injuries and not when he was receiving the injuries, so as to consider him as an eye-witness. It is also submitted that the real cause is something different i.e. enmity with Mr. Rajput and character of the victim Shambhubharti being a drunkard and having so many cases against him. It is also submitted that in fact the appellant was on leave and, therefore, it was confirmed from this witness that how leave is being dealt with in MT Section when prosecution has not come forward to disprove such fact and to prove that in fact the appellant was on duty and was available at the place of incident. However, such evidence is to be scrutinized and its effect can be determined only and only after considering the evidence of other eye-witnesses. 11. PW-14 at Exh.41 is Anwar Laghubhai Nareja. On the date of incident, he was also serving as police constable in Bhuj City police station. It is his case that at about 2.20 p.m. on 21.5.1997, he and one Bhimjibhai, Constable as well as victim driver Shambhubharti were standing outside the police station on road, at that time there was a quarrel between Shambhubharti and the appellant, which witness described that it was amongst all of them and it was regarding vehicle No. P-66. He further confirms that they all had been for road testing of the vehicle, which was being driven by appellant - accused Mohammad Hussain and at that time, appellant - accused has told them that they are not asking about his chai-paani and thereupon the victim Shambhubharti has told that he never asked anybody for chai-paani and that if you are asking about chai-paani from me, I will convey it to the S.P. i.e. Superintendent of Police. After such conversation during the testing of the vehicle, they were standing outside the police station where because of change in duty, there was handing and taking over the charge with ASI Gopalsinh, police constable Hirjibhai and driver - constable Bhikhabhai. At such time, victim Shambhubharti has again said that this Mohammad Hussain is asking money for chai-paani and he will convey it to the S.P. At such point of time, it was stated by accused Mohammad Hussain that if you convey to the D.S.P., I will kill you and thereupon Mohammad Hussain has given a knife blow in abdomen of Shambhubharti whereby Shambhubharti has fallen down and, therefore, witness has taken him to hospital with the help of other people, who were present there. It is further stated that after inflicting the knife blow, Mohammad Hussain has started to run away and, therefore, Gopalsinh and Hirjibhai have chased him to catch him, but Mohammad Hussain was able to escape the place in rickshaw No. GJ-12T-483 driven by his brother Fakir Mohammad, being accused No. 2. He identified both the accused before the Court. Therefore, this witness is not only supporting the prosecution case, but has in categorical terms disclosed the reasons, manner and details of the incident and steps taken by them after the incident. In cross-examination, he admits that his police statement was recorded on the same day evening, but he does not remember the time, but confirms that it was before sunset. He denies the suggestion that vehicle was inside the compound of station and that they all were inside the compound, but he voluntarily confirms that they were outside the police station. He admits that he has disclosed in his police statement that UHC - Gopalsinh and P.C. Hirjibhai as well as driver Bhikhabhai were present at the police station with the members of the raiding team. However, he does not know that from where Mohammad Hussain has reached there. He denies the suggestion that there was shouting outside the police station and at that time, all of them were inside the police station. So far as timing of MT Section is concerned, his version is different than the previous witness inasmuch as he has stated that it is not true that MT Section is functional between 8 a.m. to 12 p.m. and, thereafter, between 2 p.m. to 6 p.m. and that he is not telling lie regarding road testing at about 12.30 p.m. He denies all the suggestion regarding the story of Rajput and cases of prohibition both against Shambhubharti and another witness Bhimjibhai Jumabhai. He also denies the suggestion that he is telling lie because of the dispute with the accused and only to save his service, he is deposing in confirmation with his police report. Thereafter, topology of the area was inquired by the advocate for the accused, but nothing can be brought on record to prove or confirm particular fact. However, during such cross-examination, he could not confirm the presence of accused No. 2. Thereafter, topology of the area was inquired by the advocate for the accused, but nothing can be brought on record to prove or confirm particular fact. However, during such cross-examination, he could not confirm the presence of accused No. 2. Therefore, probably it is the reason for acquittal of accused No. 2, but the deposition of the witness, who was in fact real eye-witness, being present with both the accused and victim at the time of incident and, therefore, there is no reason to discard his deposition irrespective of some contradiction created by the previous witness, namely, PW-13 - Bhikhalal Naranbhai. 12. PW-15, Hirjibhai Dhanjibhai Maheshwari at Exh.42 is one of the another person, who was with the accused and the victim during the test driving of the vehicle in question. Therefore, he has got first hand information of the entire incident like previous witness. Therefore, he has also narrated in detail about the cause and nature of incident. It is his say that since brake of their vehicle No. P-61 was failed, Bhimjibhai, Anwarbhai and Shambhubharti have been to Bhuj police station and we have exchanged the charge and at that time, accused Mohammad Hussain had come near them and conveyed Shambhubharti that if you convey the D.S.P. regarding his demand of chai-paani for repairing vehicle No. P-88, then, he (accused) will kill him (victim). Thereupon, Shambhubharti has told him that vehicle is a Government vehicle and, therefore, why are you asking for chai-paani. Hence, he will convey it to D.S.P. At such time, Mohammad Hussain was annoyed and took out a knife and gave a blow on the abdomen of Shambhubharti and immediately ran away. Thereupon, the witness and Gopalsinh had chased him to catch him, but he (accused) was able to run away in rickshaw No. GJ-12T-483 with his brother and accused No. 2. It is further stated that thereupon driver - Bhikhabhai has tried to chase the rickshaw in a mobile police van, but it could not be started and since Shambhubharti was unable to stand and he was bleeding from his abdomen, they managed to take him in another vehicle to the hospital. Thereafter, he again narrated the position of both the vehicles, which has come forward during prosecution and by deposition of other witnesses. However, it is not material, hence, is not required to be reproduced. Thereafter, he again narrated the position of both the vehicles, which has come forward during prosecution and by deposition of other witnesses. However, it is not material, hence, is not required to be reproduced. However, this witness has also categorically not only supported the prosecution case, but deposed in clear words regarding the conversation by the accused with Shambhubharti regarding his demand of chai-paani and threat that in absence of chai-paani, he will use old spare parts in the vehicle and when Shambhubharti has objected to the demand of chai-paani, accused has injured him. This witness has been cross-examined, but nothing substantial can be brought on record as evidence in rebuttal by the accused. The witness confirms that his statement had been recorded on the very same day and denied all the suggestions of the defence lawyer, which are otherwise admitted by PW-13. The sum and substance of the deposition makes it clear that witness was not only present during the conversation between the accused and the victim, but he was present at the time of actual incident and he has in fact tried to catch the accused and, therefore, there is no reason to discard his deposition when accused could not prove anything in his favour from this witness. Though an attempt was made to bring on record some contradictions, the overall cross-examination makes it clear that there is no substantial evidence to rebut the prosecution story and there is no consistency in the defence story and, therefore, only because of the fact that personal details of several witnesses would be different and there upon other details related to all witnesses would be different, it cannot be said that there is a contradiction. Similarly there cannot be an evidence in verbatim by all the witnesses, but all the witnesses would have deposed before the Court in their own language from where the sum and substance of the incident, cause of the incident and result of incident is put forth, so as to confirm the sentence. It is settled legal position that discrepancy, which are not concerning the details of incident, cannot be based for confirming acquittal. There is nothing in the cross-examination of this witness to prove that he is not a reliable witness or that his deposition should not be believed. It is settled legal position that discrepancy, which are not concerning the details of incident, cannot be based for confirming acquittal. There is nothing in the cross-examination of this witness to prove that he is not a reliable witness or that his deposition should not be believed. Therefore, when such witness has not only witnessed the quarrel between the accused and victim, but seen the actual assault by the accused to the victim and when he chased the accused to catch him after the incident, there is no reason to disbelieve the version of such witness. 13. PW-16 - Popatbha Hamirji Jadeja is PSO of City police station, Bhuj at the relevant time, who registered the offence as Bhuj City police station C.R. No. 90 of 1997 and he has narrated that in fact he was registering one previous FIR being 89/1997 and at that time, one policeman has conveyed him about the assault by accused upon victim and that victim has been shifted to hospital immediately. Therefore, he has conveyed the incident to his higher officer and registered the complaint. Thereafter, it was assigned to P.S.I Mr.Joshi for investigation. Even in his cross-examination, defence could not prove any evidence in rebuttal of the evidence by the prosecution. 14. PW-14 at Exh.44 is Sr.P.I. - M.H. Joshi, who has investigated the offence and filed a charge-sheet. Since the complainant and the victim -Shambhubharti expired before trial, the witness who has registered the complaint has identified the signature of Shambhubharti and proved the complaint as being registered before him being P.I. He is also cross-examined at length. However, except some suggestions, there is nothing to rebut the evidence by the eye-witnesses. Like the victim, now, the Doctor who has examined the victim is also not available for deposition since he has left the place and his whereabouts could not be found. Except this information, and barring an admission regarding statement by Rajendrasinh Jadeja, the cross-examination cannot confirm the acquittal. The witness has also proved the FSL report and other documents, which he has dealt with during his investigation. 15. PW-18 at Exh.51 is a staff of general hospital, who identified the signature of the Doctor, who had examined the victim and issued the certificate, namely, Dr.Sadhana Saxena. Such certificate is at Exh.53. The witness has also proved the FSL report and other documents, which he has dealt with during his investigation. 15. PW-18 at Exh.51 is a staff of general hospital, who identified the signature of the Doctor, who had examined the victim and issued the certificate, namely, Dr.Sadhana Saxena. Such certificate is at Exh.53. The injury certificate categorically disclosed the fact that injury was sustained on abdomen, which was inflicted by knife by friend. This is statement by the victim before the Doctor immediately after the incident. So far as nature and other details of injuries are concerned, the Doctor has endorsed that there is big incised wound, just below the umbilicus or abdomen and it was deep going into abdomen cavity. Injury was identified as grievous and by sharp-cutting instrument and because of complications Doctor has advised to transfer the victim to Rajasthan Hospital at Ahmedabad. In addition to such case history from case-paper, the injury certificate is proved on record at Exh.63 wherein civil surgeon has certified that Shambhubharti, M/32, admitted in MSW on 21.5.1997 with assault injury by knife following incised injury in abdomen, same day exploring leproscopy done with saturing of ilium and then opined that because of complications patient is not out of danger. This certificate is dated 5.6.1997. Till then, victim was hospitalised. Such certificate is proved by PW-19 at Exh.62, namely, Civil Surgeon Dr. Mahendra Jivabhai. In his cross-examination, he has admitted that victim has developed fiscula due to which there were other complications and, therefore, he was transferred, but he does not know the outcome after the transfer and admit that fiscula can be developed because of poor resistance and infection. 16. Therefore, except one witness, when all the eye-witnesses have categorically disclosed the cause and nature of incident and there is no evidence in rebuttal to prove that their presence could not be believed, only because of some contradiction in one of the witness, it cannot be said that entire story of prosecution is baseless and that accused is entitled to clear acquittal. 17. So far as contradiction in one witness is concerned, it is also vague in nature and not in clear terms. 17. So far as contradiction in one witness is concerned, it is also vague in nature and not in clear terms. In fact on going through such evidence, it becomes clear that witness has tried to blow both hot and cold inasmuch as he has admitted and disclosed his presence and cause as well as nature of incident and injury in his examination in chief, but in cross-examination, he has tried to mislead the Court by describing the place of incident in somewhat different manner than other witnesses. Therefore, what is more material is the cause and nature of incident and not only the topology or the details of the surroundings of the incident. The determination may be different if case rests on circumstantial evidence and if there is no eye-witness at all. Therefore, if we believe the selectiveness or mischief or even we do not blame him when witness says that he rushed to the place after hearing the shouting, then, he is certainly not an eye-witness and, therefore, contradictions regarding topology by him is not material at all. As against that, there are as many as two other witnesses, who were accompanied by both the victim and the accused during the period when there was a discussion regarding chai-paani and even at the time of actual incident, wherein accused has given a blow by knife to the victim. The story of the prosecution is also believable when incident had taken place because of demand of chai-paani and making a complaint to the higher officer. 18. As against such categorical and clear evidence by the prosecution, wherein two witnesses have not only identified and witnessed the incident, but tried to catch the accused on the spot and stated that he was able to run away from the place of incident in a rickshaw driven by his brother, there is no reason to believe that complainant and two witnesses have falsely implicated the accused in such a case. Even for the sake of argument, for the moment if we believe that the accused has been involved in this case only because of his complaint against one PSI Rajput, it cannot be believed that to file a complaint against someone, victim - injured complainant would injure himself grievously as the victim has received the injuries, which may be one of the reason for his early death. Similarly, it may not be possible that all three persons viz. the complainant and victim as well as Pws-14 and 15 are telling lie and that too only for Mr.P.I. Rajput who is already convicted by the competent Court. 19. As already stated herein above, though the accused could not rebut the evidence of the prosecution to prove his innocence and though accused has filed certified copy of few judgments to show the characteristics of the victim and the PSI Rajput and though accused has tried to explain the innocence in his further statement u/s.313, none of such evidence is enough to prove innocence of the accused. 20. With list at Exh.64, the accused has produced a certified copy of judgment and order dated 8.3.1989 wherein said PSI - N.R.Rajput has been convicted and sentenced to undergo imprisonment for eight years for committing offences punishable u/ss.307 and 333 of the IPC. However, only because accused is witness and injured in such case, it cannot be said that present case is initiated only because of such case, inasmuch as nobody would injure himself in abdomen, which may result into complications and ultimate death. 21. The accused has also filed a copy of one FIR registered with Bachau police station as Prohibition C.R. No. 5099/2000 dated 9.10.2000 against the injured Shambhubharti u/s.66(1)(B) under the Prohibition Act. However, only because of the case under the Prohibition Act against the victim, it could not prove the innocence of the accused, such is the situation with the third document being statement of the victim dated 21.11.2000 before the P.S.I of Bachau narrating some incident that might have taken place on 19.11.2000, but for any such dispute between some other person does not mean that the present accused has not given a knife blow to the victim as narrated by the eye-witness herein. 22. I have perused the memo of appeal and impugned judgment. When the learned Sessions Judge has given proper reasoning for coming to the conclusion regarding guilt of the accused - appellant, I do not find any reason to deviate from such decision when Sessions Court has taken care of facts, circumstances and law applicable to such case. 22. I have perused the memo of appeal and impugned judgment. When the learned Sessions Judge has given proper reasoning for coming to the conclusion regarding guilt of the accused - appellant, I do not find any reason to deviate from such decision when Sessions Court has taken care of facts, circumstances and law applicable to such case. Therefore, when there is no other option of such determination regarding commission of offence by the accused, there is no reason to modify or alter the order of conviction only because the appeal is preferred or only because few contradictions are highlighted by the accused - appellant. 23. It is settled legal position that when there are eye-witnesses narrated in similar tune, and when there is a proof of incident and injury as alleged in the charge-sheet, the accused may not get benefit of minor contradictions. Similarly only because panch witness did not support the investigation, may not be the sole reason for confirming acquittal. 24. Therefore, I do not find any substance in the appeal. However, considering the fact that the incident is of the year 1997, the appellant and his wife are not keeping good health and appellant has already been dismissed from service since the year 1997, though conviction is to be confirmed, so far as sentence is concerned, it would be appropriate to reduce the same to the imprisonment already undergone. Thereby, the appeal deserves to be partly allowed. 25. For the foregoing reasons, the present Criminal Appeal is partly allowed. Thereby, the judgment and order regarding conviction of the appellant is confirmed; whereas, so far as sentence is concerned, it is reduced to the period already undergone by the present appellant. Since the appellant is on bail, his bail bond shall stand cancelled. R & P be sent back to the concerned trial Court.